This is something I wrote back in April for one of my classes. It is actually a pretty interesteding subject. I agree with Smitty. I am not really a big gun guy, but it is about our liberties.

The Rights of Americans to Bear Arms

The Second Amendment states ?a well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.? These seemingly simple twenty-seven words have been subject of a great debate throughout the history of the United States. In times of school violence and terrorism, the landscape has changed, but the issue still is at hand. Different states have different laws. Some states, such as Texas, seem to encourage the right to bear arms as part of the American way. In other parts of the United States, such as Washington DC, there are bans on all handguns in all homes at all times for everyone. Despite the efforts in Washington DC, there are a high percentage of violent crimes and murders that take place in the nation?s capital. The Supreme Court has long avoided a direct ruling on the meaning of the Second Amendment. This seeming indifference to ruling as left the Second Amendment open for interpretation and great debate. The Supreme Court appears ready to rule that the Second Amendment grants an individual the right to bear arms for the first time in the nation?s history in regards to the constitutionality of a handgun ban in Washington (Biskupic). An analysis of the Second Amendment reveals two principal arguments: Whether or not the right to bear arms is militia related and whether or not the wording applies to today?s modern society.

The interpretation of the Second Amendment is problematic. The exact wording of Second Amendment is indistinguishable and unclear. The question is whether the wording implies that the state is allowed to maintain an armed militia which protects a free state as a collective right or if the right of the people to keep and bear arms is an individual right (Cannon). According to Andrew Stephen, the wording is clear and simple in meaning that the right given is that of a collective privilege to a ?well-regulated? militia. Stephen attributes the lack of gun control to multiple instances of violence. One such incident was a schizophrenic man who opened fire in a Baptist church. The man had purchased the gun at a local flea market. The lack of regulation allowed an unstable individual access to a deadly weapon (Stephen). However, another argument is that the limitation of the rights to bear arms is restrictive. In the late 1990?s, Timothy Joe Emmerson was involved in a nasty divorce. His wife alleged that Timothy had threatened to kill her lover. As a result, a restraining order was issued against him. However, the restraining order restricted the Texan from possessing a gun (Cannon). However, the average gun ownership in Texas is four per person (Stephen). Emmerson was then arrested and charged for possessing the gun. However, the case was thrown out shortly after by a judge (Cannon). In addition, a common argument about the proposed gun control legislation is that it takes the safety away from the citizen. If guns were made illegal, only criminals would have guns. By banning or limiting guns, many feel that criminals would be more likely to take advantage of them and anyone not carrying a weapon as a form of self-defense.

The Supreme Court has long since had a tendency to avoid ruling on Second Amendment issues. Many different times there have been potential cases for review that they have declined to rule on. The far reaching potential effects of a Second Amendment ruling are among the reasons for the hesitance. The Supreme Court has not ruled on the Second Amendment in a case since United States v. Miller in the year 1939. In this case, Jack Milller was charged with carrying a sawed-off shotgun across state lines. The Supreme Court ruled that since the militia would not have carried such a weapon, Mr. Miller was not protected by the Second Amendment. Although a related ruling, the decision in the case did not give a definitive ruling as to the meaning of the Second Amendment (Cannon). Instead, the Supreme Court shied away from making the ruling. It simply allowed lower courts to continue ruling on their own. Previous rulings in lower courts have maintained that the right to arms is associated with service in a state militia and not the right of the individual. Although this has generally been the ruling of the lower courts, the decisions have gone both ways. This is due to the vague and unclear wording that leaves much open to interpretation of the reader. However, when the Supreme Court rules, likely in June of 2008, it appears that the majority will rule in favor of the individual?s right to bear arms. Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito emphasized the ?right of the people?. In addition, Justice Clarence Thomas has suggested in previous writings that he also favored the ?right of the people?. Justice Anthony Kennedy, often thought to be a swing justice, represented a belief of defending oneself against the wilderness or hostile Indian tribes and outlaws, however, he clearly showed a proclivity to the belief that the ?general right to bear arms? was covered as well. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer seem to suggest that the Second Amendment covers the ?common defense? of the nation and not the right of the individual (Biskupic). Although this ruling is not an absolute positive, it is highly likely that the decision will be ruled in this way. If this decision goes as expected, many things in American society and law may change and make the way we live different.

The potential effect of a ruling that the Second Amendment defends the right of the citizen to bear arms could be colossal in the United States. A major consideration of the ruling is how far the Second Amendment extends. Dennis Henigan, the legal director of the Center to Prevent Handgun Violence fears that the ruling could have serious implications. ??it would throw into doubt a lot of sensible gun laws. Some would survive. Others would not. It would be a terrible shame.? Although unlikely that bans on assault weapons and other laws about dangerous weapons would change, nobody knows the reach of the ruling and how it will change the legal standings. Since the precedent would be new, lower courts would have to rule on new issues altogether. In addition, previous legislation may not apply and may need to be changed or new laws altogether may need to be created (Cannon). In addition, a change is gun laws could allow for convictions to be overturned in previous cases. The possibility does exist that this ruling could allow for appeals that even get three strike criminals in California out jail from a life sentence without parole. However, James B. Jacobs, the Warren E. Burger Professor of Law and the director of the Center for Research in Crime and Justice at New York University Law School has a different opinion on the effects from the ruling. Jacobs insists that a complete backing of the Second Amendment can actually have a great effect on society and crime. He feels that people who want gun control have actually constructed a huge obstacle on gun control by the way they go about trying to achieve it. With a ruling in favor of the individual, a national registry would be a much more achievable option. This registry would include ballistic fingerprinting. Ballistic fingerprinting would allow police to trace a bullet or spent shell casing back to a gun and owner or to find out where an unlicensed individual got a gun from. Jacobs feels that with this ruling, tens of millions of gun owners would be willing to cooperate with the database. Jacobs points to the massive confiscation of guns in Great Britain in 1996 as to the thinking behind gun owners and non-cooperation in a national database. In 1996, a school massacre occurred in Dunblane, Scotland, thus prompting a confiscation of guns. However, Jacobs feels that the strong understanding that the guns are safe would prompt gun owners to register and over time add all new guns to the list. This new found impetus for gun control could lead to a major change in how Americans look at guns in general. A new found outlook on gun control could be beneficial to everyone. If a national database were created, murders and other violent crimes may be able to be solved in a more efficient and timely manner. In addition, a database including ballistic fingerprinting may also avoid wrongful convictions (Jacobs).

The viewpoints presented on the right to bear arms and gun control are starkly different. So what did the founders of the United States mean when they wrote the second amendment? The answer to this question may never be known. The founding fathers may not have even had a clear idea between themselves. The exact wording of the Second Amendment is in fact vague. The Supreme Court is built in as part of a system of checks and balances and their interpretation is very powerful. Smaller courts will now have precedent to rule in cases that previously may have had a different outcome. Previously decided cases may be overturned because of their ruling. Undoubtedly, people on both sides of the argument will either declare victory or loss. However, there is another consideration that few seem to acknowledge. The founding fathers may have been vague and language has changed in general over 200+ years. However, they did leave an ability to change the general layout of government and the rights of Americans. In the end, the Supreme Court appears ready to rule that the wording is towards the rights of the individual. However, if America feels that the definitive ruling that has been put off for so many years is wrong, politicians need to do what is right for America and create a new amendment. This is the only way to end a debate. America needs to take a deep look into the future of this law and come to an agreement as to what is best. Although no solution will ever make everyone contented, a good compromise that avoids extremes on both ends will in the end be the best solution for America.

Very cogent analysis. I know not everyone on the forum is from the U.S. and understands how important this case is. Like you pointed out, it may help further the debate on gun regulation if people aren't afraid of losing their right all together.

P.S. Harro- I've seen a lot more posts further off-topic in the Lounge than this.

P.P.S. It will definitely be a highly searched topic for the next few days so go make some money off it using polls, etc.

Did the writers of that little amendment have to over throw a government? Could they have put that in to make it possible to over throw the government if need be again? It is a case of passing along the idea that the power is to be with the people, not the government.

Leave the guns to the guys and gals that are paid and trained to use them.

You'd be amazed by how fast the crime rate would drop.

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Really? It is funny you say that cause this ruling was about whether or not they should be able to have guns at home in Washington DC which had a gun ban. So the laws their say that only the cops should have weapons. Even though that is the case, DC is one of the worst places in all of the US. Among tops in murder rate and violent crimes. In theory, it would be nice to have it work the other way. However, that just isn't reality.

Oh boy here we go. Okay, I'll bite and toss my 2c in. I'll preface everything I say with the fact that I feel that if you want to own a gun you should be able to. But....imo, owning A gun is not the same as owning a fucking arsenal that includes automatic, high powered weapons, armor piercing bullets and the like. You want to hunt, great. You want to protect your home, you should be able to. I don't own a gun, the only reason being that my wife is terrified of them but I would prefer to have one and yeah, I'd love to go to a range and use it.

But that tired old NRA dogma is ridiculous and sorry to disagree smitty but I don't think this has as much to do with our "liberties" as you say. Where is the line drawn with this? What type of gun is unacceptable or are they all okay?

In regards to crime and that argument, gun control has NEVER been an answer to crime and I do not believe there should be a total ban on gun ownership but again, where is the line drawn.

Oh and lastly, "a well-regulated Militia, being necessary for the security....." Please, let's get real okay? If just one NRA member would at least admit that that is so outdated as to be laughable, I'd be happier.

But that tired old NRA dogma is ridiculous and sorry to disagree smitty but I don't think this has as much to do with our "liberties" as you say. Where is the line drawn with this? What type of gun is unacceptable or are they all okay?

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No need to be sorry about disagreeing dude, that is what these threads are for

I just have grown a little sick of all the things "we can't do" its nice to see a ruling go the peoples way.

What about situations like after Hurricane Katrina when the police went door-to-door confiscating innocent citizens' guns, basically leaving everyone at the mercy of all the lawless looters?

...and there wasn't a damn thing that could be done about it until months later. Most innocent citizens never did get their guns back from the police.

When a "State of Emergency" or "Martial Law" is imposed, citizens basically have no rights. Case in point, during the aftermath of Katrina, on the evening of August 31, 2005, New Orleans Mayor Ray Nagin nominally declared "martial law" and said that officers don't have to worry about civil rights and Miranda rights...scary.

I have to side with guns, simply for the fact that when the government takes your guns its not to protect you its to protect it.

Leave a civilization with rocks and sticks while you have armies and tanks and you rule them.

However to that I would also say that our government has already turned 85% of the population into mindless slaves producing more money and power for those up top while they themselves can barely keep their electricity on.

The true way to control a man is not by force, but to make him ask you for it.

I have to side with guns, simply for the fact that when the government takes your guns its not to protect you its to protect it.

Leave a civilization with rocks and sticks while you have armies and tanks and you rule them.

However to that I would also say that our government has already turned 85% of the population into mindless slaves producing more money and power for those up top while they themselves can barely keep their electricity on.

The true way to control a man is not by force, but to make him ask you for it.

One of the reasons I am moving to Japan. I rather take a knife than a bullet any day. I've been shot at once, witnessed a shooting (San Jose) and nearly carjacked (Oakland). Neither resulted in anyone being harmed but it's not something I want to go through. Too many people in the states are gun happy. People rather shoot it out than talk it out, walk away or just fight bare handed. A lot of cowards out here nowadays.

One of the reasons I am moving to Japan. I rather take a knife than a bullet any day. I've been shot at once, witnessed a shooting (San Jose) and nearly carjacked (Oakland). Neither resulted in anyone being harmed but it's not something I want to go through. Too many people in the states are gun happy. People rather shoot it out than talk it out, walk away or just fight bare handed. A lot of cowards out here nowadays.

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